Decided on February 17,1982



- (1.) This appeal by special leave is directed against a judgment dated 29th Aug., 1975/1st Sept., 1975, of the Bombay High Court convicting the appellant, Mohanlal Gangaram Gehani (hereinafter referred to as A-1) under Sec. 326, I. P. C. and sentencing him to rigorous imprisonment for three years. He was also convicted under Section 323 read with S. 34, I. P. C. but no separate sentence was awarded.
(2.) The trial Court had convicted A-1 under S. 326/34, I. P. C. which was altered by the High Court to one under Section 326 simpliciter. The details of the prosecution case are to be found in the judgment of the High Court and it is not necessary for us to repeat the same. We shall, however, give a brief resume of the important facts which are germane for deciding the short points raised by Mr. Jethmalani, counsel for the appellant.
(3.) The occurrence out of which the present appeal arises appears to have taken place on April 2, 1972 at about 11/11.30 p. m. According to the prosecution while Ishrat Malik Faqih (hereinafter referred to as 'Ishrat') was returning from a movie in Paradise Cinema, situated at Lady Jamashedji Road, Mahim at about 12.15 a.m. he met Salim, a friend of his, along with Sheikh Abdul. Kalim alias Pappu (P. W. 4). He also saw another person standing with Salim and Pappu. All of them started talking to one, another when suddenly they saw a black Fiat car coming from Lady Jamshedji Road and, taking a turn to Chotani Road. The car stopped near the place where the aforesaid persons were talking and A-1, A-2 (Shashi) and A-3 (Kumar) emerged from the car. According to the informant, Ishrat, all the three accused were known to him before. These persons were dead drunk and asked Ishrat and party as to who amongst them was their leader. Some sort of an altercation took place in the course of which A-2 caught hold of the shirt of Shanker Shetty and assaulted him with fists. He was joined by A-3 and the altercation culminated in a murderous assault said to have been made by A-1 who took out a dagger and stabbed Shetty on the right side of the stomach below, the chest. Shetty fell down. Thereafter A-1 ran back to his car and sped away leaving behind A-3 who could not get into the car. Ishrat immediately proceeded to the Mahim police station and lodged an F. I. R. with Sub-Inspector Sawant (P. W. 7) at 00.50 hrs. on April 3, 1972. According to the prosecution, the informant had rushed to the police station and lodged the FIR within an hour of the occurrence.;

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